REF/2006/0663

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
JUPITER INVESTMENTS LIMITED

APPLICANT

and

(1) BRIAN FLETCHER
and
(2) PAULINE FLETCHER 

RESPONDENTS

Property Address: Land to North West of Warrington Road, Abram, Wigan
Title Number: MAN32999 and GM200804

Before: Mr Michael Michell sitting as Deputy Adjudicator to HM Land Registry

Sitting at: VAT Tribunal,  Manchester

Applicant Representation: Mr Fuchs, FRICS, employed by the Applicant
Respondent Representation: Mr Matthew Hall, counsel instructed by Platt and Fishwick solicitors 

___________________________________________________________________________

DECISION
___________________________________________________________________________

EASEMENT – PRESCRIPTION – ALLEGED SERVIENT TENEMENT HELD UNDER LEASE

Authorities
Simmons v Dobson [1991] 1 WLR 720
Bradbury v Grinsell 2 Wms. Saund. (1871 ed.) 502-512
Roberts v James (1903) 89 LT 287
Bright v Walker (1834) 1 Cr M&R 211
Williams & Hibbitt v Sandy Lane (Chester) Limited [2006] EWCA Civ 1738 

1.	The Applicant, Jupiter Investments Limited, claims to be entitled to a right of way in favour of land which it owns off Warrington Road, Abram, Wigan over land comprised within the title of land known as and situate at 518 Warrington Road, Abram. I refer to the land over which the right of way is claimed as “the access way”.  The land for the benefit of which the Applicant claims to be entitled to the right of way is registered at HM Land Registry under Title No. MAN32999. The leasehold title to the land over which the right of way is claimed is registered at HM Land Registry under Title No. GM200804. The disputed application by the Applicant was referred to the Adjudicator to HM Land Registry. I conducted a site view of the land over which the right of way is claimed and of the land said to benefit from the right of way and heard submissions and evidence.

Background

2.	No.518 Warrington Road is at the southern end of a row of 6 terraced houses. The side flank wall of 518 Warrington Road lies beside a driveway which gives access both to yards at the back of the terrace and also to a large area of unbuilt land which lies between the houses on Warrington Road numbered from about 456-522 (even nos. only) and the Leeds and Liverpool Canal which flows under the Warrington Road at a point to the south of 522 Warrington Road. No.522 Warrington Road is a house which is more modern than 518 Warrington Road; it stands in gardens to the south west, i.e. on the other side of the access road from 518 Warrington Road. The Applicant’s land has been used over the years as allotments and for rough grazing. There was some dispute as to the basis on which the land had been so used and how the land was accessed for the purposes for which it was used. 

3.	The Respondents are the owners of the leasehold interest in 510, 512 and 518 granted by a Lease dated the 20th May 1886 for a term of 999 years from the 12th May 1886 by one Peter Hart to Alice Ann Pennington (“the Lease”). The Lease reserved an annual rent of £5.0s.10d. The Lease also originally comprised 508, 514 and 516 Warrington Road, in other words the entirety of a terrace of houses of which 508 lies at one end and 518 at the other end. 508 Warrington Road was assigned by an assignment dated the 10th May 1952. 516 Warrington Road was assigned by an assignment dated the 14th April 1951 and 514 Warrington Road was assigned by an assignment dated the 22nd August 1951. Following those assignments the assignor retained the leasehold interests in 510, 512 and 518 Warrington Road and it is the leasehold interest in those properties which is now vested in the Respondents. The Respondents were registered as proprietors with good leasehold title on the 3rd November 1987.

4.	 A copy of the Lease dated the 20th May 1886 was produced. The Lease was a building lease. It was a lease of a piece of land comprising 807 square yards.  The land was described as adjoining on the south westerly side land belonging to the lessor. The Lease contained a covenant by the lessee within six calendar months from the date of the Lease to erect and finish one or more dwellinghouse or dwellinghouses with suitable outbuildings and fences or walls on the land and behind the building line shown on the lease plan.

5.	It was common ground that one half in width of the road or driveway over which the Applicant claims a right of way is comprised within the land the subject of the Lease and that the Respondents have a leasehold interest in it.

6.	I heard no evidence as to the identity of the person in whom the reversion expectant on the term granted by the Lease is currently vested or was vested during the time that the Applicant claims to have acquired the right of way.

Evidence

7.	I heard evidence from a number of witnesses as to the use made of the driveway.  In support of its claim, the Applicant relied on the evidence of 2 local residents, Mr Richard Wilde of 516 Warrington Road and Mr Charles Owen of 512 Warrington Road.   

8.	Mr Wilde was born in 1925 and had lived at 516 Warrington Road since 1951.  He had started renting a piece of the land (“Mr Wilde’s Plot”) now owned by the Applicant from a Mr William or “Billy” Wells in 1951.  He said that Billy Wells had a lease of what is now the Applicant’s land.  In 1988 he stopped paying rent to Billy Wells and paid it to the Applicant’s predecessor in title, Greenalls. Since 2000, he had paid rent to the Applicant. He had given up part of the land he initially rented but retained the remainder and was using it currently.   He had fenced part only of the land initially but had fenced a larger part when his son came of age in 1976 or so and wanted to keep poultry.  

9.	Mr Wilde said he drove a motorbike over the access way for a few years from 1951, keeping the motorbike in a shed on Mr Wilde’s Plot.  Mr Wilde said he kept poultry on  Mr Wilde’s Plot and that a poultry feed supplier, Hawkins of Manchester made deliveries of feed once a month, driving over the access way to get to Mr Wilde’s Plot where he kept the feed in a shed.  From 1975 until 1980 Mr Wilde’s son kept a car in a garage on Mr Wilde’s Plot.  From 1980 his son visited him by car and parked on or near to Mr Wilde’s Plot.  In 1959 with Mr Wilde’s permission, his neighbour, Mr Martland built a garage on Mr Wilde’s Plot.  The garage remainder there until it was removed in 1988 when the local water board did some works on the Applicant’s land, including on Mr Wilde’s Plot.  About this time, Mr Wilde and Mr Martland put in a clinker and cement road over the access way.  Mr Martland had ceased to use the garage by the 1970s and it remained unused until Mr Owen started to use it in the 1980s. There was a third garage on the Applicant’s land which was used by a Mr Clayton.  Mr Wilde asserted that the access way had been used him and his family and visitors with and without vehicles from 1951 until November 2003 when the Respondents blocked the way by padlocking the gate

10.	Mr Owen gave evidence that he had driven across the access way from July 1983 when he was given permission to go into 512 Warrington Road to start work on it ahead of his purchasing that property.  From 1984 he had rented a plot of what is now the Applicant’s land behind 512 Warrington Road.  The plot had formerly been rented by Mr Martland.  Contrary to what he said in his statutory declaration, Mr Owen said in oral evidence that he had not paid any rent to Billy Wells. He had, however, between 1988 and 2000 paid rent to Greenalls and from 2000 he had paid rent to the Applicant.  He parked his car not on the land he rented but on part of the Applicant’s land behind 522 Warrington Road.  He had not been given permission by anyone to park on the land behind 522 Warrington Road.  From 1984 for about 18 months he had parked a car on the garage put up by Mr Martland on Mr Wilde’s Plot.  Mr Owen produced a photograph taken in 1983 showing three motor cars. He is sitting on the car in the middle.  In the background there can be seen the wooden fencing around Mr Wilde’s Plot and a shed on Mr Wilde’s Plot.  
     
11.	The Applicant also sought to rely on an unsigned statutory declaration of John Storey, a former employee of Greenalls.  Mr Fuchs for the Applicant gave evidence that he had compiled the statutory declaration for John Storey to sign, using information which he had been given by John Storey.  John Storey had refused to sign the declaration because the Applicant had refused to pay him.  I do not consider that I can fairly rely as evidence on anything in the unsigned statutory declaration and I do not do so.  Further, I do not consider it safe to rely on Mr Fuchs’s hearsay evidence of what John Storey said.  The simple fact is that John Storey did not sign the statutory declaration and I cannot assume that he believed its contents were true.        

12.	The Respondents called evidence to refute the evidence of user put forward by the Applicant.  Mrs Wendy Atherton is the sister of the Applicant, Mrs Fletcher.  She gave evidence that before 1988 the access way was too overgrown and boggy for her to use as an access to the Applicant’s land.  She had not actually walked down the access way before 1989 but had walked past it on the road and could see it.  She had never seen cars parked on the Applicant’s land.

13.	The Respondent, Mr Fletcher gave evidence.  He had acquired 518 Warrington Road in January 1987.  He had not seen Mr Owen park on the Applicant’s land; Mr Owen had parked in the common yard at the rear of his house.  He accepted Mr Wilde had poultry but he had never seen any vans or lorries delivering poultry feed to Mr Wilde.  He believed it would not have been possible for lorries or vans to have used the access way to drive to Mr Wilde’s Plot because beyond where the water board put a gate in 1988, the access way had been a swamp and over hung with vegetation.  Mr Wilde’s son did come down the access way in his car about once a week after 1988 when the water board did works on the Applicant’s land and put down a road surface on the access way.    

Findings of Fact

14.	I accept the evidence of Mr Wilde that (1) he had driven a motor cycle over the access way for a few years from 1951 to Mr Wilde’s Plot; (2) from 1952 until 1980 vans bringing poultry feed had come down the access way to Mr Wilde’s Plot about once a month;  (3) that a Mr Martland had kept a car in a garage on Mr Wilde’s Plot from 1959 until about 1969, driving it to and from the garage over the access way; (4) Mr Wilde’s son had kept a car in a garage on Mr Wilde’s Plot from the 1975 to 1980; and (5) Mr Wilde’s son had until November 2003 driven over the access way when visiting his father on approximately a weekly basis and had parked on or beside Mr Wilde’s Plot.  I also accept the evidence of Mr Owen that he had between 1983 and 1988 driven over the access way to park on the Applicant’s land, although he parked behind 522 Warrington Road without the permission of the Applicant or its predecessor in title or any tenants of predecessors in title.  I also accept that for about eighteen months Mr Owen had parked his AMC car in a garage on Mr Wilde’s Plot, gaining access and egress over the access way.  I do not accept that prior to the works by the water board in 1988 the access way beyond where the gate is now (i.e. on the other side from the road) was too overgrown and waterlogged to allow access.  I accept that water did lie on the land and that it was sometimes under 6 inches of water but this did not prevent regular access by cars to Mr Wilde’s plot.  The photograph taken in 1983 and produced by Mr Owen plainly shows that it was possible for cars to get onto the Applicant’s land from the access way.  I do not consider that Mrs Atherton took very much notice of the state of the access way before 1988.  She may have gained the impression from a few glances that it was overgrown but I do not consider that her evidence is such as to throw serious doubt on the evidence of Mr Wilde and Mr Owen.             

Law
15.	Counsel for the Respondents referred me to the passage to be found in Megarry & Wade: Law of Real Property at para.18-128 where the learned authors state

“The whole theory of prescription at common law is against presuming any grant … by or with anyone except an owner in fee”.

Later in the same passage the learned authors say

“A claim by prescription must therefore fail if user can be proved only during a time when the servient land was occupied by a tenant for life or for years”.

The claim of the Applicant is based on prescription at common law or alternatively under the doctrine of lost modern grant or alternatively under the Prescription Act 1832. It is stated in Gale on Easements 17th edition at para.4-52 that

“In the case of an easement claimed by prescription at common law there must have been enjoyment as against an absolute owner of the servient tenement”.

16.	Where the servient land is occupied under lease then there is no enjoyment as against the absolute owner of the servient tenement.

17.	In the case of claims based on lost modern grant the editors of Gale express the view that the same rule should apply and

“That an enjoyment as against an owner of the servient tenement who cannot dispose of the fee is not sufficient”.

Authority for this proposition can be found in Simmons v Dobson [1991] 1 WLR 720. The rule is stated in Bradbury v Grinsell 2 Wms. Saund. (1871 ed.) 502-512 as follows

“Though an uninterrupted possession for 20 years or upwards should be sufficient evidence to be left to a jury to presume a grant; yet the rule must ever be taken with this qualification, that possession was with the acquiescence of him who was seized of an estate of inheritance: for a tenant for life or years has no power to grant such right for a longer period than during the continuance of his particular estate. If such a tenant permits another to enjoy an easement on his estate for 20 years or upwards without interruption, and then the particular estate determines, such user will not affect him who has the inheritance in reversion or remainder; but when it vests in possession the reversioner may dispute the right to the easement, and the length of possession will be no answer to his claim”.

A lost grant however can be assumed by proving acquiescence on the part of the freehold owner. In Roberts v James (1903) 89 LT 287 Sterling LJ said that in order to establish acquiescence one must show knowledge on the part of the person against whom the knowledge is asserted of the fact that the easement was enjoyed, and that that was very clearly established by Daniel v North (1809) 11 East 372.

18.	In the case of claims under the Prescription Act 1832 the position appears to be different depending on whether the claimant relies on 20 years’ enjoyment or 40 years’ enjoyment. In the former case a claim could only succeed if title is shown against all persons having interests in the servient tenement – see Bright v Walker (1834) 1 Cr M&R 211. In the case of 40 years’ enjoyment 40 years’ enjoyment against a tenant will confer a right to an absolute easement unless the reversioner resists the claim within three years after determination of the leasehold estate. The view of the editors of Gale at para.4-61 is that 40 years’ enjoyment even against the tenant confers a valid right against all the world unless and until the reversioner resists the claim within three years of his interest falling into possession.

19.	A more modern statement of the law can be found in the decision of the Court of Appeal in Williams & Hibbitt v Sandy Lane (Chester) Limited [2006] EWCA Civ 1738 at para.22 where Chadwick LJ stated as follows

“It is trite law that, for the purposes of prescription, the relevant owner of the servient tenement is the owner of the freehold interest. The presumption or inference of the grant, to which long uninterrupted user of the right claimed may give rise, is a grant by the freehold owner. … It is the need to show acquiescence on the part of the freehold owner which, if not met, may prevent the acquisition of a right by prescription in a case where the servient tenement has been subject to a tenancy during the period of the use. The existence of the tenancy may lead to the conclusion that the freehold owner had no knowledge of user upon which the prescriptive claim is founded; or (if knowledge is shown) may lead to the conclusion that it was not within the power of the freehold owner during the period of the tenancy, to prevent that user”.

The learned judge went on to consider the decision of the Court of Appeal in Pugh v Savage and at para.24 set out the principles to be derived from the decision in Pugh v Savage as follows

“First, in a case where the grant of the tenancy of the servient land predates the user by or on behalf of the owner of the dominant land, it is necessary to ask whether, notwithstanding the tenancy, the freehold owner of the servient land could take steps to prevent user during the tenancy. The answer to that question is likely to turn on the terms of the tenancy. Second, if (notwithstanding the tenancy) the owner of the servient land could take steps to prevent the user, then it is necessary to ask whether (and, if so, when) the freehold owner had knowledge (actual or imputed) of that user by the owner of the dominant land. The fact that the freehold owner of the servient land was out of possession when the user began and throughout the term of the tenancy may well lead to the conclusion that knowledge of that user should not be imputed. … Third, in a case where user of the servient land by the owner of the dominant land began before the grant of the tenancy, it is necessary to ask whether the freehold owner of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, then it is likely to be immaterial whether the terms of the tenancy are such that the owner of the servient land could (or could not) take steps to prevent that user. That is because if (with knowledge of the user) the owner of the servient land grants a tenancy of that land on terms which put it out of his power to prevent that user, he can properly be said to have acquiesced in it. Fourth, if the owner of the servient land did not have knowledge of the user at the date of the grant, then the position is the same as it would be if the grant had predated the user. It is necessary to ask whether (notwithstanding the tenancy) the freehold owner can take steps to prevent the user, and, if so, whether (and if so when) the owner had knowledge of the user”.

Did the grant of the tenancy of the servient land predate the user?

20.	There was no evidence before me that the allegedly servient land was used to gain access to the Applicant’s land at any time prior to the grant of the Lease. Furthermore, there is some reason to believe from the terms of the Lease that the roadway over which the right of way is claimed did not exist at the date of the grant of the Lease. At the date of the grant of the Lease, there was an open area of land which was leased for the purposes of the construction thereon of houses. I conclude that this is a case where the grant of the tenancy of the allegedly servient land predates the user by or on behalf of the owner of the Applicant’s land.

Could the freehold owner of the servient land have taken steps to prevent the user during the tenancy?

21.	There are no provisions in the Lease which would have enabled the owner of the freehold interest to have taken steps to stop or prevent user of the leased land for the benefit of the Applicant’s land. There are no covenants in the Lease on which the freehold could have relied. It was no breach of the terms of the Lease for the tenant to permit or tolerate others to cross the demised land. There was no covenant to take any steps to prevent the acquisition of easements or other rights over the leased land.

Did the owner of the servient land have knowledge of the user by the owner of the Applicant’s land?

22.	This question does not arise since I have found that the freehold owner could not take steps to prevent user during the tenancy. If it had arisen then I would have found that the freehold owner had no knowledge whether actual or imputed of that user. As there was no evidence who the freehold owner was it seems to me to be impossible for me to find that the freehold owner had knowledge actual or imputed.

Is user for 40 years made out?  

23.	On the evidence, I have found user by Mr Wilde and his invitees with vehicles as a means of access to Mr Wilde’s Plot from 1951.  However, it is not in dispute that the Respondents barred access in November 2003 and only permitted access again in November 2005.  User by Mr Wilde and his invitees was thus interrupted for a period in excess of one year.  The period of 40 years required by the Prescription Act 1832 must by a period of 40 years “next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question”- see Section 4.  Furthermore, the user must have been without interruption, as defined in Section 4.  As the user was not without interruption, the period of 40 years user has not been made out. 

Lost Modern Grant
23.	The Applicant cannot establish a right of way by lost modern grant because user as against the freehold owner has not been established.

Conclusion
24.	If follows in my judgment that the Applicant has not established that it has acquired an easement over the land of which the Respondents are leasehold owners. The Applicant has not shown acquiescence on the part of the freehold owner and accordingly the claim to an easement must fail.

Costs

25.	My preliminary view is that costs should follow the event and accordingly that the Applicant should pay the Respondents’ costs of the proceedings before the Adjudicator to be assessed if not agreed on the standard basis. The parties may make submissions as to liability for costs in writing. Any such submissions should be sent to the Adjudicator and to the other party within 21 days of the date of this Decision. If the Respondents do not receive any such submissions from the Applicant within 21 days then they may submit to the Adjudicator for assessment a bill of costs. A copy of the bill should be sent to the Applicant at the same time as it is sent to the Adjudicator. The Applicant may then within 14 days make written submissions to the Adjudicator as to how the sums shown on the schedule should be assessed. A copy of any such submissions should be sent to the Respondents at the same time as they are sent to the Adjudicator. The parties should note that the Adjudicator may award only costs incurred since the date of the reference of the disputed application to the Adjudicator by HM Land Registry.

Dated  23rd October 2007